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Back to: Third Session | Draft Article 16 Comments on the draft text Download complete compilation of comments: MS Word
National Human Rights Institutions Ontario Human Rights Commission 4. The Commission is supportive of all the subparagraphs of this draft Article. The Commission has referred a series of cases before a human rights tribunal and will be arguing that children with autism have a right to access intensive habilitation services necessary for their communicative and social development and ability to exercise and benefit from their right to education. There is related case law in this regard. In a recent decision of the British Columbia Court of Appeal in Auton,1 the Court confirmed that behavioural therapy for children with autism is a medically necessary treatment, and that if untreated, autism will likely lead to an individual being unable to access service programs such as education. The Court ordered the government to fund the treatment. EDF proposes to limit the reference “subject to available resources” in paragraph 3b. EDF supports the paragraphs referring to the support to be provided to the families as a key element for promoting the rights of disabled children. The article might include a paragraph which protects the disabled child from possible negative situations within the family. This should be based on a reference to the best interests of the child, in line with the content of the Convention on the Rights of the Child (CRC). Article 16 is much too closely based on out of date models for supports and contains totally unacceptable references to 'subject to existing resources'. Such a qualification would never be considered in relation to girls or members of minorities. This article as it is currently drafted would be regressive for many people who have a disability and in many jurisdictions. Indian NGO Consultative Meeting A substitute text for 16-3- b). is suggested. The new text proposed is as follows “ the extension to the child and those responsible for his/her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents and others caring for the child.” New text to be included in article 16 as para 6. This should be read as “ States parties shall ensure children with disabilities specially girl child with disabilities is not subjected to exploitation and abuse of any kind including sexual abuse.” Further addition to the text of article 16 is suggested by way a new para- 7 of article 16, which should be read as “ States parties undertake to ensure children with disabilities including girl child with disabilities is not used for any illegal purpose including for economic gains." This Article is a duplication of Article 23 of the Convention on the Rights of the Child. However, Article 23 is the weakest provision of the Convention on the Rights of the Child, as it includes language “shall” as compared to the more forceful “should”. Draft Article 16 of this Convention, even though it does specify rights of children, does not adequately deal with the issues that are particular to children with disabilities as a sub-group of people with disabilities, such as abuse or exploitation. For example, the Ad Hoc Committee may consider emphasizing groups at risk within this group, i.e., refugees, orphans, etc. Children with disabilities are mentioned only in two other Articles of the Convention. (Article 17-Education and 21-Rehabilitation) Thus the Committee should consider including more specificity in Draft Article 16, in order to make it stronger than Article 23 of the Convention on the Rights of the Child, and more adequately tailored toward issues and barriers facing specifically children with disabilities. For a helpful reference on formulation of an article dealing solely with children with disabilities, see Rights into Action’s contribution to the Working Group. This document is available at: http://www.un.org/esa/socdev/enable/rights/wgcontrib-riaction.htm Footnote 54 explains that duplication exists between this Article and Article 23 of the Convention on the Rights of the Child, which deals with Children with Disabilities. Therefore, the Committee should consider whether reference to children with disabilities should be included in every article, or if it should be dealt with exclusively within this provision. If the latter approach is adopted, then as mentioned above, the Article needs to further elaborate the issues relevant to children with disabilities. The draft language of paragraph (5) refers to the right of participation of children with disabilities. A helpful reference in this regard would be Article 12 of the Convention on the Rights of the Child, which addresses children’s right to participation. This Article provides a lower standard than in the convention of the rights of the child there the ”best interests of the child”, is stated. Habilitation as a concept directed to of children with disabilities is fundamental. Re-habilitation is to re-establish abilities, which have got lost. Habilitation could be defined under Article 3, Definitions. Footnotes Footnote 1: Auton (Guardian ad litem of) v. British Columbia (Attorney
General), [2002] B.C.J. No. 2258. |